Section 97 of the Social Security (Scotland) Act states that, when exercising its pre-legislative scrutiny function, the Commission must have regard to any relevant human rights instrument ratified by the UK and to the Scottish social security principles. Implications for the draft regulations will be highlighted as appropriate throughout the report, but we feel there is merit in highlighting at the outset some of the most relevant human rights provisions in particular.

Non-discrimination provisions appear in multiple human rights agreements. While not all explicitly recognise disability as a prohibited ground for discrimination, it is well established that in these cases disability falls within the protection of the broad prohibition of discrimination on the basis of ‘other status’. The absence of formal discrimination against disabled people is not sufficient to comply with the non-discrimination provisions. Special measures may be required to eliminate substantive discrimination, enabling people with impairments to participate in society and enjoy their other rights on equal terms with others.

The existing UK disability ‘extra costs’ benefits act as such a special measure, by recognising and partially compensating for the additional costs people can incur as a result of their impairment and discriminatory barriers.  However, devolution provides an opportunity to consider whether provision could be improved to better achieve this objective, whether now or at later date following the secure transition from DLA to CDP, in keeping with the aspiration in human rights law to the progressive realisation of social rights. Social security principle (g) also makes clear the advancement of equality and non-discrimination must be central to the quest for continuous improvement.

Apart from the obvious objective that, as far as possible, disabled people can enjoy the rights outlined below on equal terms with other members of society, there is a need to consider whether people with certain kinds of impairment are particularly disadvantaged in the current system. For example, at our stakeholder roundtable on the earlier version of the draft regulations, the Commission heard that people with mental health conditions can face particular barriers to receiving support in the UK social security system. This reflects the findings of previous research and inquiries.

Further, the principle of non-discrimination might be respected by modernising the medicalised approach and associated language, including the language of ‘suffering’ (a point made by stakeholders we consulted) that can be experienced by people using the system as dehumanising and discriminatory. This would also be in keeping with social security principle (d), that respect for the dignity of individuals should be at the heart of the Scottish social security system. It is something that should be considered when drafting guidance and should future opportunities for more fundamental review of the approach become available.

Recommendation 2: In drafting Disability Assistance regulations, the Scottish Government should remove the more out-dated language, in keeping with the principles of dignity and respect.

Rights to social security, or to benefit from social security, are found across a range of international agreements. Disability is one of the nine contingencies against which social security is expected to protect. Again, the UK system already does this, but devolution provides an opportunity to consider whether the protection offered can be improved in Scotland. One of the key functions of social security is to help people enjoy an adequate standard of living, which the Convention on the Rights of Persons with Disabilities specifies should include appropriate assistance with disability-related costs. A secure transition from DLA to CDP is being prioritised at present, but in the medium term there may be more that can be done to ensure that those children who need the additional support disability benefits provide are able to access it, and that it is paid at an appropriate rate.  Social security principles on contribution to poverty (e) and continuous improvement in ways which put the needs of those who require assistance first (g) are consistent with this.

Other human rights provisions can act as a check-list against which to test whether the social security system supports an adequate standard of living, including disability-related costs. The core elements of the right to an adequate standard of living – adequate food and housing – are supposed to be met through the main income-replacement benefits, which are not devolved, although some recipients of CDP might also benefit from the Scottish Child Payment. Disabled children have a right to the highest attainable standard of health. For many, realisation of this right will require extra expenditure on heating, special diets, home adaptations or other forms of support. There have also been well-publicised examples of the administration of the social security system having a detrimental effect on health, due to the stresses of the process or prolonged waits for payments.  There is certainly scope to reduce such risks.

Disabled children also have a right to a full, decent and dignified life, with the ability to actively participate in the community. This is reinforced by the wider rights of disabled people to social inclusion and personal mobility, and presumably includes the child’s right to play. Additional support compared to other children may be required to secure these rights, with both care needs and mobility costs, consistent with principle b) that social security is a human right and essential to the realisation of other human rights.

The best interest of the child must be treated as a primary consideration in the making of any decisions affecting their welfare. This has been a particularly important right in the area of social security in recent years. The right could impact on the development of the CDP in various ways. On the one hand, if there are clear deficiencies in current UK disability benefit provision for children, devolution provides an opportunity to rectify them. On the other, it would clearly not be in the interests of disabled children if the transition from DLA to CDP resulted in some losing entitlement to, or experiencing delays in the receipt of, either a disability benefit or a passported cash or non-cash benefit.

Finally, children have a right to express their views on matters affecting them and to be heard in administrative proceedings. This has implications for the policy development process, which ought to provide opportunities for input from disabled children themselves, and not just from parents, carers and organisations or professionals speaking on their behalf. This is consistent with principle (f), that the system should be designed with the people of Scotland. It also has implications for the administration of the CDP, which ought to seek appropriate ways for children to be active participants in their own applications and any subsequent appeals – having due regard to their age and any cognitive impairment or mental health condition.

Recommendation 3: The Scottish Government should consider what more can be done in the medium term to ensure that human rights and social security principles are embedded in disability assistance policy and practice, including that children themselves are appropriately involved in policy development.